Education Law Publications

DUFF, WHITE & TURNER, L.L.C.
Attorneys and Counselors at Law

SCHOOL LAW
"ISSUE OF THE MONTH"
OCTOBER 2007

Revised State Special Education
Regulations Now In Effect

At long last, revisions to State Board of Education special education regulations have been issued and, as of August 24, 2007, have gone into effect. The revised State special education regulations closely track the federal special education regulations, which were revised in 2006 to implement the most recent amendments to the federal law known as the Individuals with Disabilities Education Improvement Act of 2004. The most significant provisions of the revised State regulations are discussed below.

Parental Consent

Written, informed parental consent is only necessary before an initial evaluation or a reevaluation is conducted, or before the initial provision of special education services. Parental consent is no longer necessary for a "change in placement" that is either a change in the category of disability or in the program model. A school district may, but is not required, to use the due process hearing procedures to override a parent's refusal to consent to evaluation. A district may not use the due process procedures, however, to override a parent's refusal of consent to the initial delivery of services.

Evaluation

Initial evaluations must be conducted within 60 calendar days of receiving parental consent for evaluation, unless 1) the parent repeatedly fails or refuses to produce the child for evaluation; or 2) the child enrolls in another school district during this time frame, the new district is making sufficient progress to ensure prompt completion of the evaluation, and the parent and the district agree to a specified time as to when the evaluation will be completed.

Identification of Children with Specific Learning Disabilities

The State may not require the use of a severe discrepancy model to determine eligibility and must permit the use of a process based on a child's response to scientific, research-based intervention (RTI), or the use of other alternative research-based procedures. The determination of disability must be made using a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information. As districts transition to the use of a school-wide model to address RTI, and as the eligibility criteria for disability categories are reviewed and revised, evaluation teams may need to continue using assessing procedures that are already in place.

Identification of Children with Developmental Delays

The category of developmental delays (DD) has replaced the category of preschool child with a disability (PCD). The new category ranges from ages three through nine, rather than the previous age range for PCD of three through five. Children who previously would have been classified as PCD will now be classified as DD. The evaluation process and eligibility criteria that are currently in place should be used for these children.

Individualized Education Program (IEP's)

Within 30 days of the determination that a child needs special education and related services, a meeting to develop an IEP must be held. As soon as possible following the develop ment of the IEP, special education and related services must be made available to the child in accordance with the IEP. Designated IEP team members may be excused from attending an IEP meeting in whole or in part if certain conditions are met. After the annual review meeting, the parent and district can agree to make changes in the IEP without convening an IEP meeting. The district must ensure that the IEP is accessible to all general education teachers, or related service providers, and any other service provider who is responsible for its implementation.

Discipline

School personnel may remove a child with a disability for not more than 45 school days to an interim alternative educational setting (IAES) for drugs, weapons, or inflicting serious bodily injury upon another person while in school, or school grounds, or at a school function. Serious bodily injury is defined as involving a substantial risk of death; extreme physical pain, protracted or obvious disfigurement, or protracted loss or impairment of a bodily member, organ, or mental faculty.

Manifestation determinations are required whenever a decision is made to change the placement of a child because he or she violated a district's code of conduct. A manifestation determination must occur within 10 school days of the decision to change a child's placement. The school-based group that conducts the manifestation determination must review all relevant information in the child's file and determine 1) if the conduct in question was caused by or had a direct and substantial relationship with the child's disability; or 2) if there was a failure by the district to implement the IEP, was the conduct in question a direct result of that failure? If the conduct was directly related to the disability, or the conduct was the direct result of the district's failure to implement the IEP, a functional behavioral assessment must be conducted and a behavioral intervention plan implemented. Additionally, the child must be returned to his or her previous placement, unless the conduct involved special circumstances (drugs, weapons, or serious bodily injury) or the parent and the district agree to a change in placement as part of the behavior intervention plan.

If you have questions about the application or implementation of the State special education regulations, please do not hesitate to contact us for assistance.